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Challenges persist for marijuana in the workplace, panelists say

Discussion covers testing options and legal protections for employers

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Following the state’s legalization of recreational marijuana use late last year, the legal landscape for the industry remains challenging, according to a local drug testing company official at a recent Springfield Area Chamber of Commerce event.

“Marijuana is a moving target,” said John Throckmorton, senior training consultant at Tomo Drug Testing. “Things were different six months ago, and they will probably be different six months down the road. There’s not a lot of precedent that’s been set.”

Throckmorton joined Elizabeth Wente, a partner at law firm Spencer Fane LLP, in a discussion on how employers can navigate challenges of cannabis legalization. The speakers at the June 21 event also shared tips and best practices to aid business owners with drug testing options and legal protections.

Shari Reaves, vice president of human resources at O’Reilly Automotive Inc., moderated the panel discussion. She noted employers like O’Reilly (Nasdaq: ORLY) have people working in safety positions – a long list that includes hospitals and manufacturers – and want to keep employees safe. For O’Reilly, which employs roughly 87,400 companywide, including nearly 2,400 locally, that includes those who work in its distribution centers or are delivery drivers, she said.

“We understand, as employers, we’re all faced with the same challenges. There’s some confusion and concern about maintaining a safe workplace,” Reaves said.

Regarding O’Reilly’s workplace policy about drug and alcohol use,  spokesperson Sonya Kullmann Cox released a statement: “We expect all team members to report to work unaffected by illegal or misused drugs or alcohol.”

Wente said she hears from clients who are concerned by employees possibly coming to work under the influence of marijuana.

“The starting point is the law clearly says you don’t have to allow your employees to be under the influence of marijuana while they are at work,” she said, noting it’s best to treat the drug like they would alcohol.

Shift in mindset
Taught as a child through the Drug Abuse Resistance Education program to “just say no” to drugs, Wente said she and others were told marijuana was the gateway drug to more dangerous substances.

“There is a shift in mindset that has to happen to ‘This is now a legal substance.’ That is a difficult shift,” she said. “We have to know this as employers because while it might not seem like an employer problem, it is impacting your workplace. We have to make sure we are working on that mind shift that we are trying to understand what ‘under the influence’ looks like. From a safety standpoint, that is going to be reasonable suspicion.”

Loss of coordination, distorted perception and problems with memory are among signs of marijuana use, according to the U.S. Drug Enforcement Administration.

“Reasonable suspicion training is critical to not only giving you all best practices but also giving comfort to your supervisors and managers that they know what they’re supposed to be doing,” Wente said, noting it is one of the best safety-related tools employers can implement in their workplace. “You as business owners do hold the responsibility here.”

The state’s marijuana industry is on pace to be a billion-dollar producer this year, according to data from the Missouri Department of Health and Senior Services. Stephen Doerhoff, lead attorney for the Division of Cannabis Regulation within DHSS, gave an overview at the chamber event of the industry’s development in the state over the past few years. In the medical marijuana program alone, approved by voters in 2018, he said there are nearly 167,000 active patients and 2,400 caregivers in the state.

Since dispensaries were given the green light in February to begin selling recreational marijuana, cumulative monthly sales in the industry for adult use and medical cannabis have surpassed $100 million. Recreational sales in May were $92.6 million, while medical marijuana was $28.3 million for a combined $120.9 million. The amount is slightly off the monthly record set in March, when sales totaled $126.2 million.

Sixteen percent of Americans say they smoke marijuana – surpassing cigarette use – and 48% say they have tried it at some point in their lives, according to a Gallup poll released last year.

Testing options
In the workplace, the three most common tests for drugs are urine, oral fluid and hair follicles, Throckmorton said.

“That’s a conversation that has to be had in terms of what’s the best fit for each particular employer,” he said.

Throckmorton said oral fluid, aka saliva tests, is better than urine tests for detecting marijuana use quickly. They have an average detection window of four to 14 hours after ingestion.

However, while the U.S. Department of Transportation recently approved oral fluid testing, the tests for those in the transportation sector can’t happen until the Department of Health and Human Services certifies at least two laboratories for primary and split specimen testing. He said the drug testing industry expects the laboratories will be approved by either late this year or early 2024.

Urine drug tests can detect THC for 30-45 days for frequent marijuana users and 1-7 days for light consumers, according to online cannabis marketplace and information resource Leafly.

“To say definitively that this person’s impaired right now because they used recently is virtually impossible with a urine-based drug test,” Throckmorton said.

Considering the expanded legality of marijuana, Wente said employers that conduct preemployment drug tests should probably reconsider because positive results are going to pop up.

“Then you’re going to be in a position of, ‘Whoa, what do I do now?’” she said. “You’re going to have some supervisors or managers that say, ‘Now, I know. I’m keeping my eye on that person. I’m watching for the signs.’”

When it comes to challenges of recognizing marijuana in the workplace, Wente stressed the need to train company leadership.

“I cannot say that enough – educating the people that are in charge of supervising their employees on reasonable suspicion training, on what the law says about marijuana and what it doesn’t say about marijuana,” she said.

But the panelists agreed employers also should take the lead to ensure their policies regarding drug and alcohol use in the workplace are clearly defined and up to date. Wente quoted bestselling author Brene Brown, who shares a concept in her book, “Dare to Lead,” that “clear is kind.”

“Don’t hide from this,” Wente said. “Don’t pretend like it isn’t happening. Be very clear with your employees about what your expectations are.”

Throckmorton said Tomo strongly recommends companies have a drug-free workplace policy that is all-encompassing.

“That’s going to establish your employer-employee relationships. That’s going to establish those expectations,” he said. As an example, he cited a situation in which a company allows employees to drink alcohol while on duty.

“Get that policy updated,” he added. “If it’s over a year since you last looked at your policy, it’s out of date. You need to get with good professionals that know how to craft a policy with wording to protect you as well as know the drug and alcohol testing industry and what your options are.”

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